In the

United States Court of Appeals

For the Seventh Circuit

No. 09-4043

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

RONDELL FREEMAN, a/k/a Nightfall, a/k/a Fall, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 07 CR 843—Joan Humphrey Lefkow, Judge.

ARGUED SEPTEMBER 30, 2010—DECIDED JUNE 17, 2011

Before FLAUM, MANION, and TINDER, Circuit Judges.

MANION, Circuit Judge. After a five-week trial, four

defendants were convicted of various drug crimes. The

district court later found that the government’s star

witness had testified falsely, that the government

knew this testimony was false, and that the government relied upon it to secure the defendants’ convictions.

The district court then granted a new trial, and the government appeals. Because the record fully supports

the district court’s findings that the government know-
2 No. 09-4043

ingly used false testimony and that this testimony

affected the jury’s verdict, we affirm.

I. 

For several years, the government investigated the drug

trade in the now-razed Cabrini Green public housing

projects. Using video surveillance, garbage pulls, controlled buys, and confidential informants, the government gathered evidence and later secured an indictment against fifteen individuals for various drugrelated crimes, including one overarching conspiracy.

Ten pleaded guilty, and five went to trial. Of those that

went to trial, one was acquitted and the others were

convicted of several charges, including the conspiracy

charge.

At trial, the government presented a bold case. It

alleged that Rondell Freeman was poised at the top of a

large drug-trafficking ring. He supplied the drugs and

with his lieutenants controlled Cabrini Green’s drug

trade—the government claimed that no one could sell

drugs there without his approval. This was by no means

a small operation. Freeman was supposed to have purchased over a kilogram of cocaine a week, which he turned

into crack and sold in retail quantities. While no exact

figure was produced at trial, one witness speculated that

this practice would net Freeman as much as $140,000

a week.

Of course an operation of this size requires help.

The government alleged that the co-defendants, Brian

Wilbourn, Daniel Hill, and Adam Sanders, all served as
No. 09-4043 3

Freeman’s subordinates, but with a twist. While they

all worked for Freeman sometimes selling his drugs at

retail, they each also had their own business that

competed with, yet was still tied to, Freeman’s control

and supply of drugs. So, although Freeman would take

cocaine and make it into his own “brand” of crack that

was sold at retail by his lieutenants, Wilbourn and others

would also buy cocaine from Freeman, cook it, and then

sell it at retail as well.

Naturally the defendants denied these allegations.

Freeman, for his part, did not have much of a defense;

he simply put the government to its burden. The others

had a different trial strategy: they candidly admitted

to dealing drugs but claimed they did so on a very

small scale, as independent contractors and not as part

of Freeman’s operation. In doing so, they denied being

tied to him in any way but friendship.

For its part, the government’s physical evidence

was buttressed by the testimony of three significant,

cooperating witnesses. Ralph LaSalle was Freeman’s

supplier; he testified that Freeman bought at least one

and sometimes more than two kilograms of cocaine a

week between 2000 through 2005. Demarquis Williams,

a co-defendant, worked for Freeman and testified about

Freeman’s stranglehold over Cabrini Green. The most

important testimony, however, came from another codefendant, Seneca Williams—the central figure in this

appeal.

For years Seneca Williams served as Freeman’s bagger,

a fairly low-level position. In it, Williams would take
4 No. 09-4043

the large chunks of crack cocaine that formed when

the powder is “cooked,” and then break and bag it into

retail-sized “rocks.” Despite such a menial role, he

knew much about the operation. He testified about how

the operation began and how it grew; he testified about

the code words and the drug houses used; and he

testified about how Wilbourn, Hill, and Sanders were

placed within the operation.

Williams was, however, sketchy on dates, so the

timeline for his testimony was based on seasons and

landmarks. This is a brief summary of his pertinent

testimony.

• Williams was released from prison in February

2002 and returned to Cabrini Green in late spring

to early summer of that year.

• Sometime during that summer, he asked Freeman

if he could start bagging again.

• Sometime later, he started bagging at an apartment on 95th and Halsted.

• Three or four months later, when it was “going

into winter,” he began bagging at an apartment on

35th and King Drive.

• The operation then moved to the second floor of an

apartment in the Granville building, where it

remained until early winter of 2003.

• A few months later, the operation moved to the

top floor of the Granville building, to an apartment

known as the “penthouse.”
No. 09-4043 5

From the context of the testimony, it seems that this refer- 1

ence to Rondell should be to Wilbourn. Our quote, however,

reflects the record.

Williams testified at length about the penthouse, frequently placing Wilbourn there with Freeman and others

discussing the drug trade. This included testimony

about the defendants “branding” their respective types

of crack. This was a particularly damning piece of testimony.

It was just one day Rondell Freeman was having

Brian Wilbourn came [sic] in. They had a big bag

of seals, all—different kinds, blue devil, blue stripe,

and orange stripe. 

Then they was talking about how this person

who picked color—what their color was. Brian

Wilbourn had the orange stripe. Royce Hatter had

the blue stripe. And Rondell Freeman stuck with the

blue devil.

Rondell then stated that he was going to stop 1

around with the orange stripes, that he would

surprise people with the new crack bag and saying

that he was going to make new clientele, sell—I guess

sell a lot. And Royce Hatter was saying he was

going to do the same thing with the blue stripes.

Rondell Freeman was saying that can’t nothing

mess with the blue devil label.

Williams’s testimony about the penthouse went beyond

that excerpt and provided some of the most detailed
6 No. 09-4043

evidence of Freeman’s operation and the other defendants’ role in it.

There was, however, a problem with Williams’s testimony about the penthouse, particularly Wilbourn’s

presence and actions there. From Williams’s testimony and

the government’s other evidence, it is clear that the penthouse was used exclusively in 2003. But Wilbourn was

in prison from 2002 until 2005, giving him an obvious alibi.

And this alibi wasn’t a surprise for the government.

After reading Williams’s grand jury testimony, Wilbourn’s attorney sent the prosecutors a letter letting

them know that Wilbourn was in prison during the time

Williams placed him in the penthouse. For some reason—never articulated—the government plowed ahead

and still had Williams testify. It solicited testimony

about Wilbourn’s presence at the penthouse; it even

encouraged Williams to specifically detail Wilbourn’s

participation in Freeman’s operation there—including the

testimony quoted above. What’s more, when Wilbourn’s

attorney began cross-examining Williams about the

impossibility of Wilbourn being at the penthouse, the

prosecutor objected, stating in the presence of the jury 

“Objection. That’s not true.” 

The court overruled the objection, but later noted it

“forcibly muted what might otherwise have been [a]

devastating impeachment.”

At the time, the government disputed that Wilbourn

had been in prison during this period. The prosecutors

felt that Wilbourn’s arrest and incarceration records
No. 09-4043 7

were unclear on his time in prison. They are not. That

aside, the government did not resolve this issue before

trial. Nor did it quickly attempt to clarify the conflict

when it was raised during the trial. Eventually near the

end of the trial and without further comment or

testimony, it stipulated that Wilbourn was in prison

from April 2002 until September 2005. And at the close

of the government’s case, the stipulation was read to

the jury—twelve days after Williams testified.

Despite the certainty the stipulation provided, problems stemming from Williams’s testimony arose again

during closing arguments. In its summation, the government still relied on his testimony for a number of

factual issues, including connecting Wilbourn to the

conspiracy through his use of the orange-striped bags.

It also used the rebuttal portion of closing argument to

confuse rather than clarify the time conflict in Williams’s

testimony. It argued that Williams had not lied about

Wilbourn and the others at the penthouse—Williams

was just imprecise or mildly mistaken about the dates

(and presumably the location) on which some events

occurred. In essence, it claimed Williams’s testimony

about the penthouse was, in fact, true—it just happened

earlier than he claimed, and in a different place.

During that line of argument, the court sustained

several objections from the defense. And it informed

the government that its argument was both inaccurate

and an attempt to bolster Williams’s testimony. The

court later found that this constituted prosecutorial

misconduct.
8 No. 09-4043

The jury eventually convicted four of the five defendants on various charges, including the conspiracy

charge. The defendants were, however, acquitted of

several others. After the verdict, the defendants moved

for a new trial, arguing that Williams’s false testimony

violated their due process rights. In a very thorough

order, the district court agreed and granted the defendants a new trial on count 1, the conspiracy charge. It

also granted Wilbourn a new trial on counts 10 and 11,

and Freeman a new trial on count 11—counts 10 and 11

were charges of possession with intent to distribute.

Concerning those counts, it found that the prosecutor’s

misconduct during closing argument affected the verdict.

II.

When the government obtains a conviction through

the knowing use of false testimony, it violates a defendant’s due process rights. Napue v. Illinois, 360 U.S. 264,

269 (1959); United States v. Bagley, 473 U.S. 667, 679 n.8

(1984) (discussing the evolution of the rule in Napue).

To obtain a new trial, the defendant must establish:

(1) that there was false testimony; (2) that the government

knew or should have known it was false; and (3) that

there is a likelihood that the false testimony affected the

judgment of the jury. United States v. Saadeh, 61 F.3d

510, 523 (7th Cir.1995). The district court found all three

criteria and granted the defendants a new trial, and we

review that decision for an abuse of discretion. United

States v. Are, 590 F.3d 499, 508 (7th Cir. 2009). The

district court abuses its discretion when it makes an
No. 09-4043 9

error of law or when it makes a clearly erroneous

finding of fact. United States v. Tingle, 183 F.3d 719, 728

(7th Cir. 1999).

A. 

There are several layers to the government’s argument on appeal. As an initial point, it argues that the

district court misapplied Napue, because Napue only

applies when the truthfulness of a witness’s testimony

can be verified or refuted. It characterizes Williams’s

testimony as a choice between competing inferences,

“rather than a matter of demonstrable truth or falsity.”

And it argues that since the truth of Williams’s testimony cannot be verified or refuted, the possibility

remains that he was mistaken. Thus, under its understanding, Napue does not apply. The government also

argues that Seneca Williams did not testify falsely and

that the district court erred by finding Williams’s testimony was false.

There are two problems with the government’s argument. First, it does not acknowledge or understand

the effect that stipulating to Wilbourn’s prison sentence

had on its evidence. See Wright & Miller, 22 Fed. Practice

& Proc.: Evidence § 5194 (1st ed. 1978); see also Keller

v. United States, 58 F.3d 1194, 1199 n.8 (7th Cir. 1995).

Williams puts Wilbourn in one place when he discusses

the drug trade and the branding of the crack: the penthouse. But the penthouse was only used in 2003. On crossexamination, Williams did not equivocate or waver on

this; he stuck to his story: Wilbourn was at the pent-
10 No. 09-4043

house, dealing drugs, and splitting up the Cabrini

Green drug trade with Freeman. And after finally stipulating that Williams’s testimony was inaccurate—nothing

could have occurred with Wilbourn at the penthouse—

the government did not re-call Williams for him

to provide an explanation. To be clear, there was no

testimony that any of the events that Williams testified

about taking place in the penthouse took place elsewhere or at another time.

In fact, it was not until the prosecutor’s statements at

closing argument that the jury heard that Williams

was mildly mistaken and the events described at the

penthouse really took place one year earlier, in a different location. See Seventh Circuit Pattern Instruction

1.06 (instructing that “the lawyers’ statements to [the

jury] are not evidence.”); accord Whiting v. Westray, 294

F.3d 943, 946 (7th Cir. 2002). In its order, the district court

rejected the government’s argument on this point as a

“glib assertion.” And we agree. The stipulation establishes that Wilbourn was never in the penthouse. If he

had never been there, those conversations could not

have taken place—there is no competing inference from

such an impossible event. Therefore, the evidence fully

supports the district court’s finding that Williams’s

testimony was false.

Second, the government’s legal argument misconstrues

the holding in Napue and our precedent. The government seizes on several cases where we have upheld the

denial of a motion under Napue when there were contradictions in testimony. Saadeh, 61 F.3d at 523; United
No. 09-4043 11

States v. Smith, 223 F.3d 554, 574 (7th Cir. 2000); Simental

v. Matrisciano, 363 F.3d 607, 615 (7th Cir. 2004). It argues

that those cases dictate that Napue is inapplicable when

there can be competing inferences about whether a

witness is lying. That is, Napue only applies when the

truth or falsity of the testimony can be established.

The government’s argument is misplaced. For one,

Williams’s false testimony was conclusively established.

But even if weren’t, none of those cases limits a defendant’s due process rights to situations where it can be

conclusively established that the government witness

was lying. In fact, we have held the opposite. In Boyd, we

noted that Napue does not require that the witness could

be successfully prosecuted for perjury. United States v.

Boyd, 55 F.3d 239, 243 (7th Cir. 1995). In this area of the

law, the governing principle is simply that the prosecutor

may not knowingly use false testimony. This includes

“half-truths” and vague statements that could be true in

a limited, literal sense but give a false impression to the

jury. Id. (“It is enough that the jury was likely to understand the witness to have said something that was, as

the prosecution knew, false.”). To uphold the granting

of a new trial, there does not need to be conclusive

proof that the testimony was false or that the witness

could have been prosecuted for perjury; all that matters

is that the district court finds that the government has

knowingly used false testimony. Thus, we reject the

government’s argument that a claim under Napue can

only be made when it can be established that the witness is lying.
12 No. 09-4043

B. 

The central issue then becomes whether the government knew or should have known that Williams’s testimony was false. Saadeh, 61 F.3d at 523. On this point, it is

obvious that when the government received the letter

from Wilbourn’s attorney, it knew there were problems

with Williams’s testimony—problems that it should

have cleared up well before Williams was allowed to

testify.

The government’s duty to assure the accuracy of its

representations has been well stated, many times before.

Berger v. United States, 295 U.S. 78, 88 (1935); Alcorta

v. Texas, 355 U.S. 28, 31 (1957); United States ex rel. Wilson

v. Warden Cannon, 538 F.2d 1272, 1277 (7th Cir. 1976);

see also United States v. LaPage, 231 F.3d 488, 492 (9th Cir.

2000) (“A prosecutor has a special duty commensurate with a prosecutor’s unique power, to assure that

defendants receive fair trials.”). This means that when

the government learns that part of its case may be inaccurate, it must investigate. United States v. Price, 566

F.3d 900, 910 n.11 (9th Cir. 2009) (noting “[w]hen a prosecutor suspects perjury, the prosecutor must at least investigate further” (quotation omitted)). It cannot simply

ignore evidence that its witness is lying. See United

States v. Young, 20 F.3d 758, 764 (7th Cir. 1994) (noting “a

prosecutor’s office cannot get around Brady by keeping

itself in ignorance” (quotation omitted)); United States v.

Wallach, 935 F.2d 445, 457 (2d Cir. 1991) (“We fear that

given the importance of [the witness’s] testimony

to the case, the prosecutors may have consciously avoided
No. 09-4043 13

recognizing the obvious—that is, that [the witness]

was not telling the truth.” (emphasis added)). Here, the

government abdicated its responsibility by failing to investigate and determine whether Wilbourn could

have been at the penthouse as Williams claimed he was.

This notice of Wilbourn’s incarceration establishes

that the government should have known that Williams’s

testimony was false. Even more, once the government

finally stipulated that Wilbourn was in prison the

entire time the penthouse was used, that meant the government knew Williams’s testimony was false. Yet

despite first using and then admitting that Williams’s

testimony was false, the government relied on it

during closing arguments. In sum, the district court did

not err in finding that the government knowingly used

false testimony.

C. 

Since Williams’s testimony was false and the government knew or should have known it was false, the

issue becomes whether the district court erred in

finding that there was a “reasonable likelihood that the

false testimony could have affected the judgment of the

jury.” Griffin v. Pierce, 622 F.3d 831, 841-42 (7th Cir. 2010)

(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).

This standard is much friendlier for defendants and

“sets a lower threshold for determining materiality.” Braun

v. Powell, 227 F.3d 908, 920 & n.11 (7th Cir. 2000) (discussing the distinction and surveying cases); United

States v. Morris, 498 F.3d 634, 640 (7th Cir. 2007) (noting
14 No. 09-4043

the standard for false testimony is “[t]he easier standard

for the defendant to meet”). The diminished burden

reflects the fact that the knowing use of false testimony

corrupts “the truth-seeking function of the trial process.”

Agurs, 427 U.S. at 104; accord Bagley, 473 U.S. at 680. At

this point in the analysis, we also weigh whether the

defendants had an adequate opportunity to expose the

false testimony on cross-examination. Saadeh, 61 F.3d

at 523; Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001).

Given all the evidence in this case, granting a new

trial is a difficult question. But we re-emphasize our

standard of review: The issue is not whether we are

convinced that the defendants are guilty but whether

the district court clearly erred when it determined that

there was any reasonable likelihood that Williams’s

false testimony affected the verdict. Powell, 227 F.3d at

920. In a trial like this, much of what occurred in the

courtroom can be lost in the transcript. Compared to

the trial judge who handled all the evidence, our understanding of the testimony and its impact is limited. We

can’t see the witnesses, and we have no idea how the

jury reacted to them: what we may dismiss as a

clumsy moment on the transcript could very well be a

clever piece of advocacy, delivered at a pivotal moment

in the trial. See United States v. Van Eyl, 468 F.3d 428, 436

(7th Cir. 2006). For five weeks, the district judge listened

to this case; she had a feel for it that we can’t replicate,

and that fact is not lost in our review of her decision.

Boyd, 55 F.3d at 242.

The government argues that since Williams was crossexamined extensively and it stipulated about Wilbourn’s
No. 09-4043 15

time in prison, the jury knew about Williams’s false

testimony. Thus, his false testimony could not have

affected the jury. In the judge’s order, she addressed

both of these arguments. Concerning the cross-examination of Williams, she noted that “[w]hen Wilbourn’s

counsel attempted to confront Williams with the dates

of Wilbourn’s incarceration [] the government objected,

stating, ‘Objection. That’s not true.’ ” And this improper

objection “forcibly muted what might otherwise have

been [a] devastating impeachment.” Concerning the

stipulation, the judge found that it did not cure the

false testimony. It was read twelve full days after Williams’s testimony and at the end of a tedious, five-week

trial. Given the judge’s view of the trial, we cannot conclude that she clearly erred in finding that the stipulation and the cross-examination did not cure the harm

of Williams’s false testimony.

Nor do we agree with the government that the evidence was so overwhelming that it was unreasonable

for the district court to find that Williams’s false

testimony affected the verdict. To be sure, there was

much evidence of the defendants’ guilt, some of it very

strong. After all, the defendants did candidly admit to

being drug dealers. But despite that, there were three

critical impressions affecting the evidence that inform

our holding. First, when reading the transcript and the

judge’s order there is an impression that the case

promised by the government—a large and profitable

conspiracy—was not what it delivered. Second,

Williams’s testimony filled in many necessary details

that gave flesh and context to the government’s evi-
16 No. 09-4043

dence. Third, the other parts of the government’s case

were not so strong that Williams’s testimony was mere

surplusage.

The government claimed that Freeman was a kingpin,

taking a kilo or two of cocaine a week—sometimes

more—and turning it into Cabrini Green’s retail market.

Yet the evidence did not fully support this claim. This

was unlike the previous cases concerning control of

Cabrini Green, with the hierarchy, wealth, and power

exercised by the Gangster Disciples. E.g., United States

v. Jackson, 207 F.3d 910 (7th Cir. 2000); Smith, 223 F.3d

at 560-62; United States v. Wilson, 237 F.3d 827, 830 (7th

Cir. 2001). When the police officers made several controlled stops of Freeman and his associates, sometimes

hoping to find the defendants with bags of money, they

had a few hundred or a thousand dollars on them. Similarly, the recorded phone calls were not those of kingpins

controlling large areas of vice; rather, they bordered on

the comical. At one point at the height of Freeman’s

“empire,” he was recorded calling around trying to

scrounge up five dollars from several associates. The

same can be said of the other defendants and the evidence against them. Indeed, the transcript does not

reveal the markings of the operation the government

alleged.

And while there was certainly evidence of drug dealing

going on, much of the strongest evidence that Freeman

was in league with these defendants in this massive conspiracy came from Seneca Williams—he was the inside

man. His testimony made up for some of the other defi-
No. 09-4043 17

Our statement on the evidence should not be read as 2

touching on the ultimate issue of whether the district court

erred in denying the defendants’ motions for judgment of

acquittal at the close of the evidence. This is the government’s interlocutory appeal and our jurisdiction is limited to

whether the district court erred in granting a new trial. See

United States v. Eberhart, 388 F.3d 1043, 1051-52 (7th Cir. 2004),

rev. on other grounds, 546 U.S. 12 (2005). The question about

denying defendants’ motion for judgment of acquittal will

be fully addressed later, if the government decides to re-try

the defendants. See United States v. Taylor, 176 F.3d 331, 335

(6th Cir. 1999).

ciencies in the government’s case. Indeed, his testimony

about Wilbourn and Sanders, supposedly at the penthouse, gave them a prominent role in the conspiracy,

far beyond the impression that any other testimony

created.

Moreover, the transcript does not reveal evidence so

overwhelming that Williams’s testimony could be

viewed as mere surplusage. United States v. Beck, 625

F.3d 410, 421-22 (7th Cir. 2010). The defense attorneys’

cross-examination was, at times, effective in qualifying,

minimizing, or casting doubt on the testimony of

Demarquis Williams and Ralph LaSalle. Indeed, all of

the testimony and evidence here does not strongly convince us that the district court was mistaken in finding

that Williams’s false testimony affected the defendants’

convictions on the conspiracy charge. Accordingly, the 2

district court did not abuse its discretion by granting

the defendants a new trial on that count.
18 No. 09-4043

III. 

The government also appeals the granting of the new

trial for Wilbourn on count 10 and for both Freeman and

Wilbourn on count 11. Williams’s role in these counts

amounted to translating the codes that were being used

by Wilbourn and Freeman during some recorded conversations. These recorded conversations served as the

principal evidence against them on these counts. The

district court found that the verdict on those counts was

affected by the government’s bolstering of Williams’s

false testimony during closing argument. To be clear, no

one suggests that Williams’s testimony concerning

those counts was false.

The district court has broad discretion in deciding

whether to grant a new trial based on prosecutorial

misconduct. United States v. Cheska, 202 F.3d 947, 949-

50 (7th Cir. 2000). The inquiry is two-fold: first, whether

there was prosecutorial misconduct; second, whether

it prejudiced the defendant. United States v. Serfling, 504

F.3d 672, 677 (7th Cir. 2007). The district court found

that the prosecutor’s comments during closing argument,

that Williams was truthful about his testimony but mistaken on the dates, was improper. See United States v.

White, 222 F.3d 363, 370 (7th Cir. 2000) (noting “[a]rgument

referencing facts not in evidence is clearly improper”).

We agree. The comment was not only inaccurate, it also

gave the impression that the prosecutor knew something outside the evidence—namely, that Williams had,

outside the presence of the jury, clarified his position and

that it was now clear that he was just mistaken on the
No. 09-4043 19

dates. This was, to say the least, improper. Morris, 498

F.3d at 642 (noting a “prosecutor may not imply that

facts not before the jury lend a witness credibility”).

To determine whether the district court erred in

finding those comments prejudiced Wilbourn and Freeman, we look at several factors, including the efficacy

of curative instructions, the defendant’s opportunity to

rebut the false statements, and the weight of the evidence. United States v. Corley, 519 F.3d 716, 727 (7th Cir.

2008) (listing all six factors). But “[u]ltimately, the

inquiry turns on whether the improper statement so

infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (quotation

marks and citation omitted). Again, we reverse only if

we have a “strong conviction of error.” Cheska, 202 F.3d

at 950 (quotation omitted).

The comments at issue were made during the rebuttal

portion of the government’s closing argument, so there

was no opportunity for the defense to counter the statement. And a curative instruction would have had

little effect. Indeed, even if the prosecutor’s statements

were the product of gross negligence, rather than an

intentional act, we fully agree with the district court that

in a case like this, the harm was not cured—instead it

left an indelible impression on the jury. While there was

other evidence to support Wilbourn’s and Freeman’s

convictions on counts 10 and 11, Williams’s testimony was

a substantial part of the evidence: he translated the code

and told the jury precisely what the defendants were

discussing on the tapes. In other words, his credibility
20 No. 09-4043

was important to the government’s proof. Thus, the

district court’s findings are well supported in the record,

and it was not an abuse of discretion to grant the defendants a new trial on these counts as well.

IV.

After a full review of the record, we hold that the

district court did not err in finding that the government

knowingly used false testimony and that there was a

reasonable likelihood that the false testimony affected

the jury’s verdict on the conspiracy charge. Nor did the

district court abuse its discretion in granting the defendants a new trial. In addition, the district court did not

abuse its discretion by granting a new trial for the

counts affected by the government’s statements made

in closing arguments. Accordingly, the judgment of the

district court is affirmed.

6-17-11